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Municipality of Mossel Bay v the Evangelical Lutheran Church (443/12) [2013] ZASCA 64 (24 May 2013)

17 July 2013   (0 Comments)
Posted by: Author: Charl Geldenhuys
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Author: Charl Geldenhuys (TheSAIT)

Parties in the Court Case

The appellant in this case was the Municipality of Mossel Bay. There were two respondents involved in the case. The first respondent was the Evangelical Lutheran Church and the second respondent was the Registar of Deeds. 

The Case

The appellant appealed to the court that the Evangelical Lutheran Church did not use the properties for their specified purposes.

Background

The Evangelical Lutheran Church was the registered owner of two properties, stand 2002 and stand 2003, in Mossel Bay. The title deed contained restrictive conditions in favour of the municipality. The conditions for stand 2002 were: 

  1. The property in question shall be used solely for church or educational purposes, provided that in addition to any church or school buildings erected on the land, a parsonage or a caretaker’s house may be erected;
  2. The land shall be used solely for the purpose set out in (1) above. If at any time it ceases to be used for such purposes, or is no longer required for such purpose, it shall revert to the counsel without payment of compensation of any improvements affected on or to the land.”

 The conditions for stand 2003 were:

"In the event of the property not being used for church purposes it shall revert to the counsel, save and except that in addition to the church one dwelling as a parsonage or a caretaker’s house may be erected in respect of the property.”

The municipality wanted to retransfer the properties since they believed that the properties were not being used for the specified purposes. The allegation made by the municipality was that the properties were not used and that the church did not attend to the maintenance of the properties. Further, the municipality also claimed that the properties were in an unacceptable state due to vandalism. 

The church’s defence was that the properties were still and would continue to be used for church or educational purposes. They would recommence these activities and repair the damages to the building once they obtained the adequate financial assistance.

Judgement

The appeal was upheld with costs. The court found that stand 2002 was not used for the intended purposes and was ordered to take all the necessary steps to register stand 2002 in the applicants name within 30 days. The Sherriff of Mossel Bay was authorised to sign any documentation if the respondent failed to comply. The court further found that stand 2003 was also not used for the intended purposes and had to take all the necessary steps to register the property in the applicant’s name. The Sherriff of Mossel Bay was authorised to sign any documentation if the respondent failed to comply.

The applicant was to bear all the costs of registration of transferring stand 2002 and 2003 into its name.   

For the full court case, please click here.


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